- Why is traveling during COVID-19 a problem?
Whether by airplane, bus, train, or car, traveling increases a person’s chances of contracting and spreading COVID-19. Travelling inevitably puts people in close contact, often for prolonged periods of time, and exposes them to more and different pathogens. Imagine three different situations. First, a woman takes the train from Washington, D.C. to New York City for a business meeting. To get to the train station, she takes an Uber. While at Union Station, she stops for a cup of coffee. Then, during the three-hour train ride, she’s in a train car with multiple other people. When she finally gets to New York, she has to take the subway to get to her hotel. In a single trip, the woman has come in contact with numerous people—the Uber driver, the barista, the people waiting on the platform, the other passengers on the train, everyone on the subway, and all the people at the hotel. Second, a student from the Boston area decides to drive home to North Carolina for the holidays. Even if the student drives alone, he has to make multiple stops during the thirteen-hour drive for gas, food, and lodging. By the time he makes it home to North Carolina, he would have physically passed through nine states—all with different safety regulations—and come in contact with countless people. Finally, a family of four boards a flight in Albuquerque, New Mexico to go visit family in Tallahassee, Florida. There are no direct flights for this trip, so the family must—at minimum—take two separate flights and spend multiple hours at different airports.
Even if just one of the people in the scenarios above tests positive for the virus, the potential consequences are grave. It would be almost impossible to accurately account for all the surfaces they may have touched or the different people they may have exposed to the virus. In the case of the family or the business traveler, contact tracers can start with a list of the other passengers that were on the same plain or train respectively. However, what about the other people standing nearby at the airport, the people waiting for a different train on the same platform, or any of the hundreds of passers-by? In the case of the student driving home, the challenge of identifying all the people he may have come in contact with at rest stops and gas stations verges on impossible. In fact, health experts recommend minimizing number of such stops precisely because it is next to impossible to control one’s risk of exposure. To make matters worse, delay only exacerbates the risk to public health, as people who were accidentally exposed can then infect other people they come in contact with.
- How have states responded to the dangers of travel during COVID-19?
To combat this risk, multiple states have implemented restrictions on travel. As of October 27, 2020, there are seventeen states that impose some type of statewide restriction on interstate travel, while a number of other states provide similar restrictions on the local level. These restrictions vary in both scope and effect. Some mandate a choice between strict quarantine and proof of a negative COVID-19 test for entry. To enforce this, some state and local governments have even erected checkpoints at which they can stop, mandate quarantine of, and even deny entry to out-of-state travelers. Other states have prohibited short-term rentals to travelers coming from out of state, thus making it logistically harder for visitors to enter and stay in the state. Finally, some states have also imposed restrictions or conditions on their own residents’ ability to travel within the state or locality.
States have justified these restrictions under their general police powers under the Tenth Amendment, which include the power of forced isolation for public health purposes, as recognized in cases like Compagnie Française de Navigation à Vapeur v. State Board of Health of Louisiana. The Supreme Court has shown some support for the idea that the circumstances surrounding COVID-19 may be sufficient to justify regulations that would otherwise pose an impermissible restriction on constitutionally protected rights. For instance, in South Bay United Pentecostal Church v. Newsom, the Court denied injunctive relief to plaintiffs challenging California’s restrictions limiting in-person church gatherings. In a concurring opinion, Chief Justice Roberts specifically highlighted that states should be allowed leeway to protect the public health and safety given the “extraordinary health emergency” posed by the pandemic. While there is no guarantee that the Court will treat travel restrictions in a similar way, the fact that it upheld pandemic-related restrictions on both the freedom of religion and association—both explicitly referenced to in the Constitution and recognized as fundamental—suggests the Court might be similarly open to upholding restrictions on the more tenuous right to travel.
- Is there a constitutional right to travel?
The U.S. Supreme Court has recognized that there is a fundamental right to travel but has not defined what that right entails or how it can be violated. On several occasions, the Court has found that there is a fundamental right to interstate travel. For instance, in Saenz v. Roe, the Court found that the Constitution protects three distinct aspects of travel: (1) the right to enter and leave a state, which had been recognized and protected under the Articles of Confederation; (2) the right to be treated as a welcomed visitor rather than a hostile stranger, which is protected by the Privileges and Immunities Clause of Article IV, § 2; and (3) the right for permanent residents in a state to be treated equally to citizens of that state, which is protected by the Privileges and Immunities Clause of the Fourteenth Amendment. Similarly, in Shapiro v. Thompson, the Court recognized that both the nature of the United States as a union between sovereign states and the constitutional concept of personal liberty require that all citizens have a fundamental right to travel throughout the “length and breadth of our land uninhibited by statues, rules, or regulations which unreasonably burden or restrict this movement.”
Given the nature of the supply chain in the United States today, there is an additional aspect to the interstate right to travel worth considering: the right to transport goods between states. Under Supreme Court precedent, the constitutional right to travel has typically been applied only to individuals wishing to travel, rather than the goods they wish to transport. However, commercial transport today largely depends on the movement of people—from truck drivers to pilots. Therefore, restrictions on an individual’s right to travel necessarily impose restrictions on the transportation of goods. Viewed in that light, restrictions on the right to travel may also implicate the Commerce Clause.
The Commerce Clause is typically framed as a positive grant of power to Congress to regulate commerce “among the several states.” However, the Supreme Court has held that the Commerce Clause also prohibits any state laws that unduly restrict interstate commerce or discriminate against interstate transactions. Under this doctrine, known as the dormant Commerce Clause, state laws that affirmatively treat out-of-state residents or interstate transactions differently than in-state ones are presumptively unconstitutional. This may have significant implications in the COVID-19 context, as many travel restrictions appear to be facially discriminatory against out-of-state travelers. As such, these restrictions would be presumptively unconstitutional unless there are no other less restrictive means to advance the state’s public health interest.
Another interesting question raised by the COVID-19 regulations is whether this fundamental right to travel also includes the right to freely travel within a state. The Supreme Court has never recognized a clear right to intrastate travel. In Bray v. Alexandria Women’s Health Clinic, the Court considered whether anti-abortion protesters who obstructed abortion clinics violated patients’ right to travel within the state. While concluding that the activities in question did restrict patients’ interstate travel, the Court noted in dicta that “intrastate travel is devoid of constitutional protection.” Some Circuit Courts have found that the right to intrastate travel is an integral component of the right to interstate travel and therefore the constitutional protection should apply to both. Others have rejected that conclusion.
- How is the right to travel impacted by COVID-19?
Even assuming that a fundamental right to travel does exist, the question remains as to whether that right is abridged by travel restrictions during the COVID-19 pandemic. A finding that a travel restriction burdens a fundamental constitutional right is not the end of the analysis. Such a restriction will nonetheless be upheld if it survives strict scrutiny—or if it is narrowly drawn to serve a compelling state purpose. There is no question that the state interest of safeguarding public health during a global pandemic of unprecedented proportions is more than compelling. Therefore, travel restrictions would likely be upheld if courts find that there is no less restrictive means to achieve the stated public-health objectives.
However, questions remain as to whether underinclusive restrictions—ones that prohibit some but not all conduct relevant to the stated government interest—could survive strict scrutiny. State regulations that restrict interstate but not intrastate travel are a prime example. Even assuming that safeguarding public health constitutes a compelling state interest—a generally accepted proposition—and that travel increases the risk of exposure, it does not logically follow that restrictions on only interstate travel constitute a narrowly-tailored fit. Often, intrastate travel poses a similar danger on public health as intrastate travel. Nevertheless, there is at least a colorable argument that differences between how states have approached the pandemic may be sufficient to justify the different approaches to interstate and intrastate travel. States that have taken comparatively laxer measures arguably expose their citizens, as well as travelers within those states, to a higher risk of infection. This difference in risk may be sufficient to justify the different treatment of interstate and intrastate travelers.
In addressing these questions, courts will no doubt look to the limited existing precedent in the context of quarantines. The Supreme Court has generally upheld previous quarantines for public health reasons, imposed under a state’s police power. For instance, in Compagnie Française de Navigation à Vapeur v. Board of Health of State of Louisiana, the Court upheld a New Orleans ordinance prohibiting both domestic and foreign travelers from entering the state because of a yellow fever outbreak. Similar to most COVID-19 travel restrictions, the quarantine in question did not differentiate based on a traveler’s individual health condition. The Court found that it was “not an open question” that public health quarantine restrictions are constitutional even in cases where they burden interstate travel. However, courts have also struck down similar quarantines in cases where the state did not have a reasonable basis to suspect that an individual was exposed or infected.
The fact that states have taken very divergent approaches to the pandemic complicates this analysis in two ways. First, states have taken different measures to fighting the pandemic within their borders. As a result, some states have had worse outbreaks than others, thus placings citizens from those states at higher risk of infection. This may provide a sufficiently rational justification for treating citizens of these states differently than others in the context of travel restrictions, even taking into account the rights of out-of-state travelers to not be discriminated against protected under the Privileges and Immunities Clause. Second, states have imposed travel restrictions that differ in scope and severity. In this respect, courts must analyze the specific language of a given restriction to determine whether the abridgement of fundamental rights is outweighed by the government interest in protecting public health. These state-by-state differences also bring up important principles of federalism—states in this case serve as the paradigm of Justice Brandeis’s laboratories for “novel social and economic experiments.” In a world where there is no clear answer on what the best course of action to fight the virus is, there is a strong argument to be made that we should give states the opportunity to experiment and be creative in finding the best way to protect their citizens.
- What is the role of the federal government when it comes to travel restrictions?
Under the 1944 Public Health Services Act (PHSA), amended by the Pandemic and All-Hazards Preparedness Act of 2006, the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013, and the Pandemic and All Hazards Preparedness and Advancing Innovation Act of 2019, the Centers for Disease Control and Prevention (“CDC”) retains broad discretion to “prevent the introduction, transmission or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” These rules thus govern both restrictions aimed at travelers entering the United States from abroad and those traveling across states. A recent review of CDC regulations suggests that “the gravity and circumstances of the outbreak, the disease characteristics, the availability of control measures, and the characteristics of the individual in question” are all relevant in determining the degree to which a regulation can infringe on constitutionally protected rights in the interest of public health.
Under the amended rules, the CDC can arguably both impose travel restrictions and detain individuals when it “reasonably believes” an individual or group of individuals have been infected, exposed, or are in the “qualifying stages” of the disease—such “qualifying stages” can include even asymptomatic cases. Detentions can be reconsidered within 72 hours; however, the CDC retains the power to renew the challenged restrictions repeatedly. It is clear that these rules were meant to be applied to individuals or identifiable groups of travelers, rather than society at large. In the case of COVID-19 pandemic, they have been applied to isolate cruise ship passengers and to issue mask guidelines for public transit. However, the COVID-19 pandemic is the first true test of the amended rules for larger-scale outbreaks—at this point, it is not clear whether and to what extent the pandemic can justify domestic restrictions as severe as the ones previously applied to foreign travelers.
As of November 5, 2020, there are no national federal mask mandates or restrictions on domestic travel. To help curb the spread of the disease, the CDC has relied on a “Do Not Board” list to prevent travelers suspected of being sick from boarding commercial flights within the US. Similar “Lookout” lists exist to prevent sick passengers from entering the United States from abroad. The CDC has also repeatedly urged—but not mandated—people to wear masks. However, as COVID-19 cases continue to climb, there’s mounting pressure for a national mask mandate. In fact, the Director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, who has long opposed a federal mask mandate, recently indicated that the current surge in cases may justify a federal law requiring masks. While there has been no similar push for federal domestic travel restrictions, the underlying principles behind such laws would be the same.
What are the options for federal COVID-19 regulations? The most likely scenario seems to be executive action by the CDC under the PHSA. The CDC”s authority would be restricted by the Constitution and other generally applicable statutes, such as the Administrative Procedure Act or the Religious Freedom Restoration Act of 1993 (“RFRA”), which requires certain religious exemptions from generally applicable rules that impose a substantial burden on religious exercise. RFRA may be especially relevant in the case of travel restrictions or general prohibitions on in-person gatherings, as both would arguably burden religious exercise to a certain extent.
It is far from clear that the PHSA as currently written authorizes broad nationwide measures as a federal travel restriction or mask mandate. To date, the CDC has only used its authority under the Act to quarantine individuals, to treat or destroy infected animals, areas, or goods, and to issue non-binding guidance to stem the spread of infection, such as recommending a temporary halt in residential evictions. As such, any broad federal regulation issued by the CDC would almost certainly be challenged in court. Any executive action by the CDC would be affected by the increasing politicization or polarization of the pandemic. In fact, the Supreme Court has cautioned that courts must “be guided by common sense as to the manner in which Congress is likely to delegate a policy decision of economic and political magnitude to an administrative agency.” Considering both the magnitude of the current health crisis and the increasing politicization of COVID-related restrictions, it is difficult to predict how courts would approach executive federal action by the CDC in this area.
The other option for federal-level COVID restrictions is congressional action. Specifically, Congress could pass a law mandating certain travel restrictions or COVID-related measures such as masks or temperature screenings. In this context, Congress’s authority would likely derive from either the Commerce Clause or the Spending Clause of the Constitution. Article I, Section 8, Clause 3 of the U.S. Constitution, known as the Commerce Clause, grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” It empowers congress to regulate (1) “channels of interstate commerce” such as roads and navigable waterways; (2) “persons or things in interstate commerce,” including interstate travelers; and (3) activities that substantially affect interstate commerce. Federal restrictions on interstate travel would likely fall neatly in either of the first two categories. However, there are limits on Congress’s broad authority under the Commerce Clause. For instance, in National Federation of Independent Business v. Sebelius, the Court held that Congress cannot compel individuals to engage in an activity. Thus, to the extent that a federal mask mandate can be construed as compelling individuals to engage in the activity of wearing masks, such regulation may be vulnerable.
The Spending Clause, found in Article I, Section 8, Clause 1 of the U.S. Constitution, empowers Congress to “provide . . . for the general welfare.” While this power is also expansive, it is still subject to limits. Congress could incentivize states to enact COVID-related regulations—like uniform travel restrictions or mask mandates—by imposing that as a condition of receiving federal funds. However, under the Supreme Court’s precedent in South Dakota v. Dole and Sebelious, such conditions would only be constitutional if (1) Congress provides a clear notice of the COVID-related mandates states must enact; (2) the mandates are related to the purpose of the federal funds; (3) the conditional grant of funds is not otherwise barred by the Constitution; and (4) the amount of the funds is not “so coercive as to pass the point at which pressure turns into compulsion.” While it seems clear that congressional spending to curb the spread of COVID-19 would likely constitute spending for the “general welfare,” the constitutionality of such a federal law would depend on the way it is drafted.
Finally, there may be additional constraints on congressional action in this case based on federalism. The Supreme Court has held that the Tenth Amendment prevents the federal government from “commandeering” or requiring state officers to carry out federal directives. In theory, this would prevent Congress from requiring states to enact federally mandated travel restrictions or mask mandates. However, it would not impact Congress’s ability to incentivize states to enact such restrictions through its Spending power, as long as the amount in question is not so large as to coerce or functionally commandeer states into enacting the regulations. Ultimately, however, given how polarized our nation and our government, it is not clear whether a federal COVID-19 solution would be a viable political option.